SEPTEMBER 2 , 2016 •
THE LAWYERS WEEKLY
3
News
Ruling said to mean state can ‘attack anyone’
John Schofield
A recent Ontario Court of Appeal
ruling reinforces the federal Food
and Drugs Act’s overly broad definition of a drug and will only create
confusion and stifle innovation,
says a British Columbia lawyer who
frequently works with the natural
health products industry.
“Now it’s wide open,” said Shawn
Buckley, principal lawyer with
Kamloops, B.C.,-based Buckley &
Company. “This decision means
basically Health Canada can go
after anyone at any given time and
say, ‘You’re a drug.’ The state can
arbitrarily attack anyone and there’s
nothing you can do. They should
call it the tyranny act.”
But lawyer Kevin Wilson with the
Ontario Regional Office of the Public Prosecution Service of Canada,
who served as counsel for the federal government on the appeal, said
the decision provides clarity. “To
the extent that there may have been
any confusion about what qualifies
as a ‘drug’ in the [Food and Drugs
Act],” he wrote in an e-mail, “this
decision puts it to rest.”
The Aug. 5 decision in R. v.
Wookey 2016 ONCA 611, centred
on the question of whether the general definition of “drug” under the
Food and Drugs Act applies to substances that were intended for recreational use, as opposed to medicinal or therapeutic uses.
The appellant, Adam Wookey,
sold products that contained BZP
or l-Benzyl-Piperazine — a substance similar to an amphetamine — between March 2008 and
January 2010. During that time,
BZP was not listed under any
schedule in the act or the Controlled Drugs and Substances Act
(CDSA). It is now a restricted drug
under the schedule in Part J of the
Food and Drugs Act and Schedule
III of the CDSA.
Adam Wookey, 32, is the grandson of Richard Wookey, the
developer of Toronto’s posh Hazelton Lanes shopping mall, now
known as Yorkville Village. Adam
Wookey was convicted of gun possession and drug trafficking charges in 2006 and sentenced to 22
months in a provincial jail.
While selling BZP, he ignored
requests from Health Canada to
apply for the necessary licences and
approvals, according to facts of the
case detailed in the decision. Eventually, the appellant and his companies Purepillz Corporation and
Pure Principles Inc. were charged
with numerous regulatory offences
under the Food and Drugs Act and
the Food and Drug Regulations.
The charges against Pure Principles Inc. were eventually dismissed.
At the July 2013 trial, Justice Leslie A.P. Chapin of the Ontario Court
of Justice convicted Adam Wookey
and Purepillz Corporation of six
counts of selling a drug in dosage
Buckley
form for which no drug identification number (DIN) was assigned,
and six counts of selling and advertising a new drug without the
manufacturer filing a new drug
submission and without the minister of health issuing to the manufacturer a notice of compliance.
The six-count convictions were
based on one count each for the
BZP products sold, which were
called Peaq, Freq, Spun, Flow, Rush
and Rush 2.
Adam Wookey and Purepillz
Corporation were also convicted
of a single count of importing for
sale drugs that violate the act or
regulations and a single count of
advertising drugs to the general
public as a treatment, preventative or cure for addiction.
On appeal, Adam Wookey challenged the convictions as unreasonable, arguing that BZP was not a
“drug” under the general definition
of the term in the Food and Drugs
Act because that definition does not
apply to recreational substances.
Under the act, a drug is defined,
in part, as “any substance or mixture of substances manufactured,
sold or represented for use in a) the
diagnosis, treatment, mitigation or
prevention of a disease, disorder or
abnormal physical state, or its
symptoms, in human beings or
animals, or b) restoring, correcting
or modifying organic functions in
human beings or animals.”
Justice Chapin found that BZP
modified organic functions in
human beings because of its effects
on the brain, the liver, the heart and
the user’s emotional state.
Adam Wookey also challenged
the constitutionality of the drug
definition on the basis that it is
overbroad. The constitutional challenge was not raised at trial. Even if
BZP were a drug, he submitted,
Justice Chapin’s finding that it was
sold as a preventative for addiction
was unsupported by the evidence
and was therefore unreasonable.
But Appeal Court Justice Michael
Tulloch, Justice Eileen Gillese and
Justice David Watt disagreed, concluding that modern statutory
interpretation, legislative history
and the purpose of the Food and
Drugs Act all support an inclusive
definition of a drug. They also
found that BZP was advertised on
the Purepillz website as helping to
prevent addiction to other more
harmful substances, contravening
s. 3 of the act.
On the question of whether the
definition of “drug” is an unjustifiable limit on s. 7 of the Charter, the
Appeal Court noted that the
Supreme Court of Canada’s decision last year in Guindon v. Canada 2015 SCC 41 gives appellate
courts the discretion to hear and
decide new issues not raised at trial.
But “the court should not exercise
its discretion unless convinced that
doing so would cause no prejudice
to the parties or that failing to do so
would risk injustice,” wrote Justice
Tulloch. “In my view, after considering all of the circumstances, this
is not an appropriate case for the
court to exercise its discretion to
decide this issue raised on appeal.”
Joseph Wilkinson, a partner with
Toronto-based Brauti Thorning
Zibarras who served as counsel for
the appellant, said the decision may
be the first to give meaningful consideration to the definition of a drug
in the legislation. “It’s really now the
defining case that I know of in Canada,” he told The Lawyers Weekly.
Wilkinson
Unlike the CDSA, which specifically lists controlled substances, the
Food and Drugs Act “has maintained a very broad definition that
could capture any substance that is
defined in the manner in that legislation,” he added. “I argued for a
more restrictive definition, and the
court rejected that.”
The constitutional issue remains
a question mark, said Wilkinson,
and he is still awaiting instructions
from his client on whether to seek
leave to appeal to the Supreme
Court. With the growth in socalled designer drugs, he added,
the federal government has used
the Food and Drugs Act as a catchall for substances not yet listed in
the CDSA.
Buckley said food and drug legislation in Canada over the years has
moved from the common law
approach, where individual freedoms are protected and specific
rights are removed only by public
agreement, to a civil regime, where
the state has all the power and
grants individual rights.
The Food and Drugs Act’s definition of a drug is so broad, he said,
that it would even include common
edibles like water, coffee or chocolate. “I have a difficult time thinking of a food that isn’t going to
modify an organic function,” he
added. “That’s why we eat.”
He argued that Health Canada is
bureaucratically expanding its
writ, and, in the process, is discouraging food and drug innovation.
“We’re basically going to lose
innovation because if anyone has
any fear at all [of being prosecuted], they’re just not going to go
there,” he told The Lawyers Weekly.
“It’s a real shame because it’s costing lives, not saving lives.”
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